The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth po- tentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).106 It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.

Can the supreme court decision to abolish affirmative action be reversed at any time?

The Supreme Court has decided to abolish the affirmative action policy that benefited Black Americans. I am wondering if that decision can be reversed at any time and how easily it could be reversed were the government or Supreme Court decide to do so, and is there a historical precedent that shows this being done?

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    "What the court giveth the court taketh away." Roe v. Wade Commented Jun 30, 2023 at 0:31
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    There are a number of well known SCOTUS reversals: Dobbs reversed Roe, Brown v Board reversed Plessy v Ferguson.
    – Barmar
    Commented Jun 30, 2023 at 15:55
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    This strikes me more as a law question than a political one, but that could just be my opinion.
    – Chipster
    Commented Jun 30, 2023 at 16:28
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    Regarding "the affirmative action policy that benefited Black Americans": Was that the case? I mean, less than half of black college students finished their degrees (~46%% in 2021), while they carried the largest student-loan burden (~44,880 USD in 2019), while presumably competing with peers who had to meet higher benchmarks to enter classes that tend to grade them on the same scale. Was that beneficial?
    – Nat
    Commented Jul 2, 2023 at 0:16
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    I mean, it seems like an interesting topic. But for an assertion in a question-statement, it seems off-topic.
    – Nat
    Commented Jul 2, 2023 at 0:20

1 Answer 1


The Supreme Court is reactive, not pro-active. It can only make law on an issue related to one of its previous precedents, when someone brings a lawsuit that presents an issue related to a previous precedent. And, the incentive to bring a lawsuit testing a well-established recent precedent of the U.S. Supreme Court is low.

With regard to affirmative action, to do it in one case, a college or university would have to deliberately defy the recent SCOTUS ruling on point, lose in all of the lower courts, get SCOTUS to grant certiorari to consider its twice rejected claim, and then get at least five members of the Court to rule in their favor. If the institution lost, it would be exposed to damages and attorney fees in a discrimination lawsuit for doing so.

But, when the U.S. Supreme Court has an appropriate case before it, it can overrule its past precedents at any time.

More realistically, litigants would bring multiple cases chipping away at the edges of the current precedent where it was ill-defined and try to make small gains there, until victory in an outright effort to overturn the old precedent was almost certain, before engaging in the defiant test case behavior necessary to overturn a precedent in a single ruling.

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    "the incentive to bring a lawsuit testing a well-established recent precedent of the U.S. Supreme Court" seems to be high if your long-term effort of filling the court with judges willing to throw out precedent has reached its goal. Commented Jun 30, 2023 at 14:59
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    Probably worth a Stare Decisis blurb, but great answer
    – bharring
    Commented Jun 30, 2023 at 17:27
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    "to do it in one case, a college or university would have to deliberately defy the recent SCOTUS ruling on point" Alternatively, a body representing African-American applicants could try to argue that race neutral admissions programs are discriminatory against them, and have standing to sue universities and work up to the Supreme Court that way.
    – nick012000
    Commented Jul 1, 2023 at 13:00
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    You say that, but this court took a case this session relating to an activity the plaintiff was just thinking about doing, and whether said plaintiff in that theoretical event, if some other theoretical event happened, would have to provide said service they don't currently provide to anyone. So no, SCOTUS doesn't really need a real existing issue to make a ruling, it seems.
    – T.E.D.
    Commented Jul 1, 2023 at 15:41
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    You could also overturn the 14th amendment via the usual amendment process, such that equal protection was no longer a constitutionally-protected right. There might be a few side effects, but affirmative action would be legally fine if racial discrimination were legally protected.
    – fectin
    Commented Jul 2, 2023 at 12:57

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